74 F.3d 1204 (Fed. Cir. 1995), 94-1186, NTN Bearing Corp. v. United States

Docket Nº:94-1186.
Citation:74 F.3d 1204
Party Name:NTN BEARING CORPORATION, American NTN Bearing Manufacturing Corp. and NTN Corporation, Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee. and The Torrington Company and Federal-Mogul Corporation, Defendants-Appellees.
Case Date:December 11, 1995
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1204

74 F.3d 1204 (Fed. Cir. 1995)

NTN BEARING CORPORATION, American NTN Bearing Manufacturing

Corp. and NTN Corporation, Plaintiffs-Appellants,

v.

The UNITED STATES, Defendant-Appellee.

and

The Torrington Company and Federal-Mogul Corporation,

Defendants-Appellees.

No. 94-1186.

United States Court of Appeals, Federal Circuit

December 11, 1995

Page 1205

Donald J. Unger, Barnes, Richardson & Colburn, Chicago, Illinois, argued, for plaintiffs-appellants. With him on the brief were Kazumune V. Kano and Diane A. MacDonald.

Michael S. Kane, Attorney, Department of Justice, Washington, D.C., argued, for defendant-appellee. Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director and Velta A. Melnbrencis, Assistant Director, Commercial Litigation Branch, Department of Justice, Washington, D.C., were on the brief, for defendant-appellee. Also on the brief were Stephen J. Powell, Chief Counsel, for Import Admin., Berniece A. Browne, Senior Counsel, and David J. Ross, Attorney-Advisor, Office of the Chief Counsel, for Import Admin., U.S. Dept. of Commerce, Washington, D.C. (Stephen J. Claeys, of counsel).

Frederick L. Ikenson and Joseph A. Perna, V, of Frederick L. Ikenson, P.C., Washington, D.C., were on the brief, for defendants-appellees, Federal-Mogul Corp. (Larry Hampel, of counsel).

Terence P. Stewart, James R. Cannon, Jr. and John M. Breen, Stewart & Stewart, Washington, D.C., for defendants-appellees, The Torrington Co.

Before ARCHER, Chief Judge, RICH, Circuit Judge, NIES, Senior Circuit Judge. [*]

NIES, Senior Circuit Judge.

NTN Bearing Corporation, American NTN Bearing Manufacturing Corp. and NTN Corporation (collectively "NTN") appeal from the final judgment of the United States Court of International Trade entered December 8, 1993 (No. 91-08-00577). We affirm-in-part, reverse-in-part and remand to the International Trade Administration (ITA) for consideration of the clerical errors alleged by NTN.

I.

BACKGROUND

Before the Court of International Trade (trial court), NTN challenged the ITA's final results of antidumping duty administrative reviews respecting antifriction bearings. 56 Fed.Reg. 31,754 (1991). NTN contested, inter alia, ITA's failure to correct clerical errors and ITA's calculation of depreciation for idled equipment and loss on disposal of fixed assets.

In response to ITA's preliminary determinations, NTN submitted a timely response arguing against some bases for the ITA's determination. NTN also requested ITA to correct two clerical errors made by NTN in its earlier submission that it alleged caused a substantial increase in the dumping margins. First, NTN alleges that it made a clerical error in listing the family code for certain part numbers sold to a United States customer. The code incorrectly showed the parts met high precision bearing tolerances, rather than the standard precision bearing tolerances. The other error involved the listing of four sales to Canadian customers as sales to United States customers, again caused by clerical misreading of a code. The effect of these mistakes was compounded because ITA used a sampling method to determine the extent of dumping, and the sample data contained the clerical errors. NTN submitted documentary and testimonial evidence to establish the fact of error. The trial court rejected NTN's request for a remand for ITA to consider these corrections. Finding that the errors were not obvious from the record and that the deadline for submitting new information had expired at the time NTN made the request (19 C.F.R.

Page 1206

Sec. 353.31), the trial court upheld ITA's refusal to correct the alleged clerical mistakes. NTN Bearing Corp. v. United States, 826 F.Supp. 1435, 1439 (Ct. Int'l Trade 1993).

The trial court further found that ITA properly included costs associated with depreciation for idled machinery and losses for disposal of fixed assets. Reasoning that the costs were incurred in the ordinary course of business and that "to not include [the cost] would distort the company's financial position," the trial court found that ITA acted reasonably and in accordance with law. Id. at 1442.

After remand on grounds not pertinent to this appeal, judgment was entered upholding ITA's review and the parties appealed to this court. See Cabot...

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